RICHARD MOORE

AMERICAN INVESTIGATOR REPORTING THE CASE FOR CONSTITUTIONAL INTEGRITY

LATEST NEWS

At hearing, DeVos stands up for school choice

Wisconsin, nation spar over Trump’s education pick
Posted by Richard Moore January 17, 2017

What with the Obama administration accusing the Russians of trying to steal the presidential election for Donald Trump, and Obama sending American troops to the Russian border this week in Poland, it is no surprise that some of Trump’s cabinet picks for the domestic side of policy have not received a lot of attention.

Take Trump’s choice for education secretary, Betsy DeVos, as Exhibit A.

An ardent supporter of school choice and charter schools, DeVos is vehemently opposed by teachers’ unions and liberals, and she is vociferously endorsed by conservatives and school-choice groups.

Either way, she is highly controversial, and in any other time the stories about her confirmation hearings would have dominated newspaper front pages for an extended period. They have not, at least before her confirmation hearing this week.

Buried though they have been, though, the stories are there, and they are of note because DeVos is, by all accounts, an agent of dramatic change.
Whether it’s good change or bad depends upon your point of view. 

To American Federation of Teachers president Randi Weingarten, DeVos is the most ideological, anti-public education nominee since a cabinet-level Department of Education was created under President Jimmy Carter.

“In nominating DeVos, Trump makes it loud and clear that his education policy will focus on privatizing, defunding, and destroying public education in America,” Weingarten said. “DeVos has no meaningful experience in the classroom or in our schools. The sum total of her involvement has been spending her family’s wealth in an effort to dismantle public education in Michigan. Every American should be concerned that she would impose her reckless and extreme ideology on the nation.”

To a coalition of Wisconsin school-choice proponents, though, Trump has made an excellent choice to lead the nation’s education bureaucracy.

In a letter to U.S. Sen. Lamar Alexander, chairman of the U.S. Senate Committee on Health, Education, Labor and Pensions, the choice advocates, including Brett Healy of the MacIver Institute for Public Policy, Jim Bender of School Choice Wisconsin, Kurt Bauer of Wisconsin Manufacturers and Commerce, and Richard Esenberg of the Wisconsin Institute for Law & Liberty, cited what they called DeVos’s decades-long commitment to education reform and said their coalition believes she will continue her advocacy for children and families.

Her approach to national education policy, they wrote, would empower states and local communities.

“We are also excited that Mrs. DeVos believes that education policy should be driven by parents and experts at the local level, not a one-size-fits-all dictate handed down from unelected federal bureaucrats on high,” the letter states. “We need a federal education department that recognizes the importance of local control — an idea that might work in California might not work in Wisconsin — and we believe Mrs. DeVos will allow Wisconsinites to figure out how to best educate our children and prepare them to succeed in the global economy.”

Others signing the letter of support for DeVos were Jason Crye of Hispanics For School Choice and Tim Sheehy of the Metropolitan Milwaukee Association of Commerce.

Confirmation hearing
At her confirmation hearing this past Tuesday, DeVos laid out her vision for education, saying that everyone can agree that learning as a lifelong pursuit is a fundamental American virtue, a virtue reflected by its strength in schools of all kinds.

“We are blessed beyond measure with educators who pour themselves into students,” DeVos testified. “The schools in which they work are as diverse as the students they educate. In fact, all of us here — and our children — have attended a mix of traditional publicly funded and private schools. This is a reflection of the diversity that is today’s American public education.”

When she married and she and her husband became parents, DeVos testified, they recognized that other parents were not able to make similar decisions about their children’s education, based on their income or the zip code in which they lived. For example, she said she visited The Potter’s House, a Christian school that served many low-income families in her hometown. 

“We saw the struggles and sacrifices many of these families faced when trying to choose the best educational option for their children,” she testified. “For me this was not just an issue of public policy but of national injustice. I committed to do something about it, and it’s become my life’s work.”

The sad reality is, DeVos said, in the past 28 years the need and demand for other options have grown, unabated.

“I share President-elect Trump’s view that it’s time to shift the debate from what the system thinks is best for kids to what moms and dads want, expect, and deserve,” she said. “Parents no longer believe that a one-size-fits-all model of learning meets the needs of every child, and they know other options exist, whether magnet, virtual, charter, home, religious, or any combination thereof.”

Too many parents are denied access to the full range of options, DeVos said, choices that many officials and lawmakers have exercised for their own children.

“Why, in 2017, are we still questioning parents’ ability to exercise educational choice for their children?” she asked. “I am a firm believer that parents should be empowered to choose the learning environment that’s best for their individual children.”

DeVos said the vast majority of students will continue to attend public schools, but that should be a choice as well.

“If confirmed, I will be a strong advocate for great public schools,” she said. “But, if a school is troubled, or unsafe, or not a good fit for a child — perhaps they have a special need that is going unmet — we should support a parent’s right to enroll their child in a high-quality alternative.”

It’s really pretty simple, DeVos said.

“Every child in America deserves to be in a safe environment that is free from discrimination,” she said. “Every student in America dreams of developing his or her unique talents and gifts. Every parent in America dreams of a future when their children have access to schools with the rigor, challenges, and safe environments that successfully prepare them for a brighter, more hopeful tomorrow.”

And every teacher, DeVos continued, dreams of breaking free from standardization, so that they can deploy their unique creativity and innovate with their students.

Fixing education
The education agency nominee said the nation’s schools are filled with talented, devoted professionals who successfully meet the needs of many children but, even so, the best schools don’t work for all.

“This isn’t the fault of teachers, but a reality that all students are unique, learn differently, and excel at their own pace,” DeVos said.

Students also face new challenges today, DeVos said, particularly in accessing affordable higher education.

“Escalating tuition is pricing aspiring and talented students out of college,” she said. “Others are burdened with debts that will take years — or even decades — to pay off. There is no magic wand to make the debt go away, but we do need to take action. It would be a mistake to shift that burden to struggling taxpayers without first addressing why tuition has gotten so high.”

For starters, DeVos said, the nation needs to embrace new pathways of learning. 

“For too long a college degree has been pushed as the only avenue for a better life,” she said. “The old and expensive brick-mortar-and-ivy model is not the only one that will lead to a prosperous future. Craftsmanship is not a fallback — but a noble pursuit.”

Students should make informed choices about what type of education they want to pursue post high school and have access to high-quality options, DeVos said, and that means supporting all post-secondary avenues, including trade and vocational schools, and community colleges.

“If confirmed, I look forward to working with you to enact solutions that empower parents and students, provide high-quality options and spend tax dollars wisely,” she told lawmakers. “We will work together to ensure the Every Student Succeeds Act is implemented as Congress intended — with local communities freed from burdensome regulations from Washington.”

The bottom line is, DeVos said, she and President-elect Trump are committed to empowering parents and families to control their educational choices.

“President-elect Trump and I know it won’t be Washington, D.C., that unlocks our nation’s potential, nor a bigger bureaucracy, tougher mandates, or a federal agency,” she said. “The answer is local control and listening to parents, students and teachers.”

Speaking for herself, DeVos said, it’s simple: “I trust parents, and I believe in our children.”

Bad for LGBT community
However, a lot of Democrats don’t believe in DeVos’s or Trump’s vision for the nation’s education future. Count Wisconsin Democratic U.S. Rep. Mark Pocan among them.

Pocan and other members of the Congressional LGBT Equality Caucus sent their own letter to members of the Senate Committee on Health, Education, Labor, and Pensions urging them to closely scrutinize and question DeVos, and they pointed to what they said was her history of opposing equality for LGBT students.

“It is unfathomable that the next Secretary of Education would oppose basic protections for LGBT students and roll back the progress we have made to ensure all students feel safe and supported in our schools,” Pocan said. “Ms. DeVos’s history of opposing equality for LGBT individuals is deeply troubling, and the public deserves to know whether she will work with us to improve lives or continue to advocate an extremist agenda that bullies our students.”

Pocan said the letter specifically highlighted the millions of dollars DeVos and her family have contributed to organizations and candidates that oppose equality for LGBT families and actively promote dangerous practices like “conversion therapy.” Pocan and his colleagues called on Senate committee members to demand that DeVos denounce those positions and stand up for policies to protect LGBT students and parents before being confirmed.

Specifically, in the letter, the lawmakers highlighted the DeVos family’s contributions to such groups as Focus on the Family, “a right-wing organization which has spent millions of dollars attempting to defeat marriage equality amendments at the state level.”

“Even more troubling, this organization supported by the DeVos family promotes ‘conversion therapy,’ opposes the right of LGBT parents to adopt children, and has referred to transgender individuals as ‘mentally ill,’” the letter stated. “This organization has even gone so far to oppose anti-bullying policies and opposes basic workplace protections for LGBT individuals.”

Other groups supported by the DeVos family include, according to the lawmakers, the Institute for Marriage and Public Policy, the Becket Fund for Religious Liberty, the Council for National Policy, and the Heritage Foundation.

The lawmakers said the LGBT community has taken huge strides under President Barack Obama.

“The LGBT community has made significant and long overdue advancements when it comes to equality in education,” the letter stated. “During President Obama’s tenure in office, the Department of Education took important steps to combat bullying and ensure that Title IX, which prohibits discrimination based on sex, appropriately reflects the rights of transgender students. It is imperative that the rights of LGBT students are adequately protected moving forward.”

In their letter, though, the pro-DeVos choice advocacy coalition in Wisconsin said DeVos was a proven fighter for greater educational opportunities for all children, period.

“Mrs. DeVos has been a relentless fighter for all of our children, regardless of their skin color, where they live, their economic status or what type of school they attend,” their letter stated.

“Simply put, Mrs. DeVos has pushed to make the education ecosystem better in Wisconsin so every child has a chance to be successful in school and every child has a chance to pursue their dream after graduation. We believe she is the right choice to reform our nation’s education system.”

And the nation clearly needs leadership and educational vision right now, the coalition group said. 

“According to the latest National Assessment of Educational Progress, less than forty-five percent of our fourth graders are proficient in reading and mathematics,” they wrote. “Our lowest-achieving students are performing worse than ever and only about a third of our high school seniors are ready for college math and reading classes.”

The news is not much better on the international level, they wrote. 

“The latest Program for International Student Assessment results show lower math scores for American students and flat scores in science and reading compared to students from across the globe,” they wrote. “Our PISA performance in math now ranks the United States near the bottom among the thirty-five industrialized nations in the world. This is unacceptable.”

Political races tighten early in unpredictable year

Trump, Johnson close the gaps, but will the trend continue?

Posted by Richard Moore Sept. 2, 2016


It has been an unprecedented and unpredictable political season, and this week offered another unusual twist, with pre-Labor Day polls showing political races around the country narrowing, a development that more commonly occurs in mid-October.


Nationally, Hillary Clinton is either tied with or only slimly leading Donald Trump even in many mainstream media polls, and the trend has been with Trump over the past 10 days. 


In Wisconsin, Democrat Russ Feingold is holding his lead over incumbent Republican Ron Johnson for the U.S. Senate, but there, too, Johnson has closed to within three points, according to a new Marquette University poll.


The mainstream media presidential polls are a shock primarily because they have heavily tilted toward Clinton even when less partisan and more independent surveys have indicated a closer race. 


In the latest Fox News poll released last week, for example, the race is effectively tied, with Clinton holding a 41-39 lead that’s within the margin of error. Libertarian Gary Johnson takes 9 percent, and Green Party candidate Jill Stein gets 4 percent.  


If that didn’t unsettle the Clinton camp, the Los Angeles Times tracking poll undoubtedly did. It put Trump ahead among likely voters, 45-42. Trump’s strength in that poll is driven by people who did not vote four years ago but say they are certain to this time.


And the Reuters/IPSOS poll, which last month altered its methodology to give Clinton a comfortable lead after Trump overtook her, now shows Trump trailing by only 40-38, even with the new methodology.


It’s hard to say what Clinton thinks about those numbers, but the media is trying to reassure itself. The L.A. Times, in analyzing Trump’s three-point lead, concluded that Trump still had a “potential route to victory, albeit a difficult one …”


Clinton is faring better in The Lakeland Times poll of polls, a collection of five polls known for their accuracy and chosen because they are unaffiliated with the partisan national media. The polls are Public Policy Polling, or PPP; Rasmussen Reports; Monmouth University; Quinnipiac University; and IBD/TIPP.


Among those polls, Clinton is leading by a solid 43.6 to 38.6 percent. However, some of those polls were taken in early August when Clinton was riding high after the Democratic convention, and later polls also reflect a tightening race. In that group, polls taken in the last week give Clinton a 42.3 percent to 38.6 percent lead.


Clinton is also on shakier ground in Wisconsin, where she should be running strong. In the Marquette poll released last week, among likely voters, Clinton leads Trump by three points, 41-38 with Johnson at 10 and Stein, 4. In early August Clinton led 47-34, Johnson at 9 and Stein at 3.


So what’s going on?

Part of it can be explained by the evaporation of Clinton’s convention bounce. Anytime a candidate gets a bounce after the convention, it almost always dissipates in a few weeks.


Clinton’s bounce was larger than normal, and the fall off bigger. But the polls indicate a larger trend toward Trump than merely a resettling of the race into its pre-convention configuration, and there are several reasons why.


First, Trump has had an outstanding two weeks, delivering several polished policy speeches. In a speech aimed at minorities as well as unemployed blue-collar workers, he called for rebuilding America’s inner cities using American labor and American steel. 


That speech resonated among African-American voters, surveys showed. That doesn’t mean many will vote for Trump, but a gain of even one or two percent in that population group would be significant.


Second, Trump’s trip to Mexico to meet with Mexican president Enrique Pena Nieto turned into a political triumph, as Trump stood on a world stage able to discuss and negotiate policy with another national leader, especially one with whom he disagrees. That addressed Trump’s biggest vulnerability, that he is not presidential and cannot work with world leaders.


Meanwhile, while Trump charged from one venue to the other, Clinton was almost nowhere to be found. While she did appear at private fundraisers, she made only one public speech in 12 days, to the VFW. And that foreign policy speech got stepped on by Trump’s dramatic journey south of the border.


At least in August, Clinton appeared to adopt a ‘keep my mouth shut and wait for Trump to detonate himself’ approach to the campaign, leaving her message to be delivered by ads. That’s a legitimate strategy when you have fairly secure organized constituencies and a lot of money, and Clinton does have a lot of money: She raised $143 million in August.


It’s a strategy that also entails a lot of risks, as those who tried it against Trump in the Republican primaries can attest to. Specifically, Clinton cannot risk losing any black voters; her union base is soft, too, given Trump’s appeal to blue-collar workers on trade and immigration; and money this year has not worked as effectively in media campaigns as in years past.


Clinton’s disappearance has also bolstered already intense speculation that she is not in good health. Conservative media has fed that narrative, but Clinton’s silent August has helped legitimize it, and fueled such social media hashtags as #whereisHillary. 


Bad economic numbers are likely having an impact as well. The latest GDP growth of 1 percent on an annualized basis is well below expectations, while, according to the Bureau of Labor Statistics, real wages fell in the first quarter by 0.4 percent, followed by a 1.6 percent drop for the second quarter. None of which is good news for Clinton.


Finally, the swirling controversy about Clinton’s emails just won’t go away, and an Associated Press bombshell about pay-to-play at the State Department while Clinton was there added to the air of corruption.


All in all, though, the ebb-and-flow character of the campaign continues. Two good weeks for Trump and two bad weeks for Hillary could be followed by two bad weeks for Trump and two good ones for Clinton.


As the candidates stay close, one way or the other, it becomes more likely with each day that the debates will settle the election.


Only one thing can be known about the outcome of the debates: The press will declare Clinton the winner by a mile, will savage Trump as unfit to be president, and declare the election over.  But that, too, happened in the primaries and didn’t convince voters. What will convince voters is what they see and hear from the candidates, so stay tuned.


The Senate race

In the Wisconsin Senate race, Johnson has made inroads along with Trump. 


Among likely voters in November’s election, the Marquette poll states, Feingold leads 45-42, with Libertarian Phil Anderson netting 6 percent. Feingold benefits by likely getting all the votes going to Stein in the presidential race, while Johnson, so far, is bringing back into the Republican column only about 40 percent of Gary Johnson’s presidential voters.


That’s not a good number for Johnson. Because there’s nowhere for Stein voters to go, Feingold has them sewed up, but that’s not true for Johnson’s libertarian-tilting voters. He must not only hold the Libertarian vote he is getting but increase it, or increase his take among other independent voters.


That’s a tall task, barring a seismic shift in the landscape.

Task Force on Youth Workforce Readiness wants technical education valued

Kulp recommends exception to levy limits for technical education programs

Posted By Richard Moore Aug. 30, 2016

The Assembly Speaker’s Task Force on Youth Workforce Readiness released a final report this week, among other things calling for the state to modify the state’s school report cards to value technical education more and to encourage high school entrepreneurship programs.

Northwoods Rep. Rob Swearingen (R-Rhinelander), a member of the committee, said the report includes recommendations to help encourage Wisconsin youth to enter careers in the trades, manufacturing industry, and technical fields.

“The state needs to expose our youth to options available through technical colleges that prepare them for potential careers in the manufacturing sector,” Swearingen said. “The end goal is to keep our kids not only in the Badger state, but in our local communities. Many of these careers offer family-sustaining jobs and competitive wages.”

Swearingen said the task force held five meetings, which included tours and input from stakeholders, since last September. The task force report includes several recommendations by committee chairman Rep. Bob Kulp (R-Stratford) to speaker Robin Vos (R-Rochester) and members of the Assembly.

In addition to a greater focus on technical education and entrepreneurship, Kulp called for one-time exceptions to levy limits for equipment purchases for technical education programs; for integrating math skills in technical education curricula and visa-versa; for modifying DWD grant criteria and outcome goals; and for implementing a clearinghouse for technical education curricula.

Kulp said there is a high demand for skilled workers in the state and jobs are going unfilled.

“We need to do a better job of changing the stigma of these positions that have family-supporting wages,” Kulp said. “We know that attracting more quality workers in these fields is essential to businesses and the economy in our state.”

The report
According to the report, during the committee’s five public sessions, numerous stakeholders emphasized the need to encourage greater participation in career and technical education. 

“The task force heard testimony about (and toured) numerous successful programs throughout the state,” the report stated. “For example, the task force heard positive testimony from multiple speakers, including businesses and industry groups, about technical college programs. The task force also learned about several high school technical education programs that have become models for other schools by cultivating support from businesses and developing curricula to prepare students for modern technical careers.”

Despite those programs, though, the report said multiple speakers testified that low participation occurs in part because technical education and careers often suffer from a “perception issue.”

“Speakers mentioned that students, parents, high school counselors, and other groups sometimes perceive technical careers as a lesser choice compared with enrollment in a four-year university, despite high job prospects and earning potential in many technical fields,” the report stated. 

“Speakers testified that the perception problem was especially present in high schools with outdated technical education curricula.” 

One speaker recommended that the state school report card could be modified to value technical education course enrollments and placement of graduates in technical college programs, the report added, while another speaker suggested requiring internships as part of the high school curriculum, which might require authorizing the Department of Public Instruction to grant waivers to districts that experience hardship in providing internship opportunities to students.

The report also stressed the importance of the private sector in youth training.

“The importance of private sector support and participation was a common theme throughout the testimony before the task force,” the report stated. “For example, model high school technical education programs emphasized that forming relationships and garnering support from local industry partners was a key to program success.”

However, the task force observed, multiple speakers noted that many private employers are reluctant to hire young people, including youth participating in certified programs such as youth apprenticeships. 

“Speakers suggested that employers in the manufacturing industry might be especially reluctant,” the report stated. “Speakers emphasized that one reason for that reluctance is a perception that hiring youth is not allowed for a particular type of work or that hiring youth increases liability. Speakers noted that employers may be unaware that state and federal law allows youth to be hired in most certified youth apprenticeship programs.”

Speakers recommended that state law should provide incentives for private employers to hire youth through tax credits and that companies can participate in workforce readiness in other ways, for example, by becoming involved in high school technical education programs. 

“One speaker recommended that state law be modified to allow high school students working in student-run businesses as part of their high school curriculum to qualify as youth apprentices despite not earning minimum wage,” the report stated.

Speakers also pointed out that a publication produced by the Department of Workforce Development provides an overview of child labor laws, the report continued, and said that the publication has helped encourage some employers to hire youth. Speakers suggested that additional, similar publications might also be useful.

Finally, the report addressed the relative expense of technical education.

“Multiple speakers stated that technical education programs are typically more expensive than other high school courses because they require ‘hands on’ education, and because model programs utilize expensive machines,” the report stated. “Speakers noted that start-up funds may be available for innovative technical education programs, but that it can be difficult to sustain ongoing funding for the programs.”

As such, the report continued, speakers recommended encouraging private sector support and involvement in technical education programs. 

“For example, it was noted that model high school programs have received donations of surplus equipment from area businesses,” the report observed. “One speaker suggested that state law could be modified to allow revenue caps to be exceeded one time for the purchase of equipment for technical education programs. Speakers stated that increasing the class size for technical education courses is not an effective method for reducing cost, because technical education is best taught with low teacher-to-student ratios and opportunities for practical application.”

Democrats, Republicans spar over education funding

Vukmir can’t do math but makes a point

Posted by Richard Moore Aug. 26, 2016

The fall elections aren’t out of the way but already a preliminary battle over next year’s biennial budget is taking place, with Democrats and Republicans sparring over education funding.

The skirmishes indicate just how important the education funding issue is and will be, both in the autumn election cycle and in the Legislature next spring.

The specific contretemps this month focuses on a single question: Is the state spending more or less on education since Gov. Scott Walker and Republicans took control of state government in 2011?

The Democrats say the state is spending less; Republicans say Wisconsin is spending more. The true answer lies in the math, more or less.

The squabble erupted in mid-August went Sen. Janet Bewley (D-Ashland) released an LFB memo she had requested on education spending. The memo showed a reduction in state general aid to more than 75 percent of the state’s school districts, she said, with fewer than 25 percent receiving an increase.

Overall, general aid statewide fell 4.3 percent by the 2015-16 school year compared to 2010-11, the lawmaker asserted. Forty-nine districts lost more than half of their general aid support.

“My Republican colleagues’ budget priorities are out of whack,” Bewley said. “They gave $209 million a year to a wealthy few, claiming it would spur the economy. The truth is that we created fewer jobs in the three years after we enacted that tax giveaway than we did in the three years before.”

Bewley also said the administration awarded what she called “unaccountable voucher school operators” with more than $200 million more.

“At the same time, our classrooms have been cut by $197 million,” she said.

The toll on teachers has been dramatic, Bewley added, saying data from the Department of Public Instruction shows that Wisconsin has lost 2,867 public school teachers and seen a 12.7-percent decrease in local experience in student classrooms over the same period. 

“It’s time to stop favoring millionaires and voucher operators,” she said. “Time we starting taking care of our public school students and looking out for middle class property taxpayers.”

Senate Democratic leader Jennifer Shilling (D-La Crosse) was just as vociferous and stayed on the Democratic talking points, namely, that Republicans were giving away education dollars to the wealthy and to private special interests.

“This report highlights the challenges facing local schools and families as a result of misplaced Republican priorities that favor the wealthy and special interests,” Shilling said. “Republicans have used their power to repeatedly cut school funding in order to shift more state dollars to their special interest allies. It’s time to stop shortchanging our children and start investing in our state’s future.”

Shilling homed in on corporate tax breaks. The La Crosse senator said recent reports had underscored Republican tax breaks for companies that have outsourced jobs and that give 11 millionaires a combined $21 million in tax breaks next year.

“Republican tax breaks for the ultra-wealthy have come at the expense of Wisconsin’s schools and children,” she said. “Millions of taxpayer dollars have gone to subsidize companies that have outsourced Wisconsin jobs while school districts are forced to cut teachers, increase class sizes and rely on referendums to maintain outdated buildings. These latest numbers show just how devastating an impact Republican cuts have had on our local communities.”

State Sen. Jon Erpenbach (D-Middleton) said it all boiled down to misplaced priorities.

“Shifting more and more public funds to private schools and signing a blank check for high cost tax breaks for Wisconsin’s most wealthy is a failed agenda,” Erpenbach said. “The reality for our communities is loss of educational opportunities.”

Gotcha
Last week, one Republican senator said the Democratic tirade was misplaced and misleading because, she said, they cherrypicked revenue streams.

According to Sen. Leah Vukmir (R–Brookfield), when all state and local funding sources are considered, combined revenue was up $30 million in 2014-15, or $65 per student since 2010-11. Vukmir said she based her numbers on a more expansive Legislative Fiscal Bureau memo than the one Bewley used.

Vukmir said Bewley’s data represented a typical case of sharing only half the story.

The memo requested by Bewley only included state aid dispersed to school districts, Vukmir said, and ignored additional funding sources, savings derived from enacted reforms, and per pupil funding figures.

She also said Shilling and other Democrats failed to acknowledge that spending reductions in state aid were paired with Act 10 reforms. 

“Of course district funding declined, but decreases were offset by accrued savings from Republican led initiatives, which allowed districts to more effectively manage their budgets,” Vukmir said.

The Brookfield Republican said the Legislature had increased state aids to public education since 2012.

“Here’s my advice to my Democrat colleagues unhappy with education in Wisconsin: perhaps aim to improve education policy by diversifying educational opportunity, as opposed to showing more interest in employee-protectionist policies,” Vukmir said. “Recent primary results indicate that Wisconsinites overwhelmingly support educational alternatives. It is becoming rather tiresome that some Democrats continue to criticize effective policy initiatives while simultaneously turning a blind eye to schools failing our youth.”

But she said Shilling was right to say that the state could do better.

“You’re damn right, we can do better,” Vukmir said. “And we will continue to under Republican leadership. I’m interested in continuing along a path of educational improvement and expansion in opportunity. Why doesn’t she? Taxpayer dollars should follow students and their educational needs.”

Oops! Calling all math teachers
As some Democrats pointed out, Vukmir’s math from the numbers she provided from the LFB didn’t quite add up.


While Vukmir claimed that combined revenues for schools was up $30 million since 2010-11, they actually declined from $11.33 billion that year to $11.14 billion in 2014-15, according to the LFB memo she used. Rather than rise by $30 million, revenues dropped by about $185 million.

Her per pupil funding figures were also off. Per student spending from all revenue sources dropped from $13,211 in 2010-11 to $13,039 in 2014-15. Thus, rather than an increase in per pupil spending of $65, as Vukmir claimed, per pupil spending dropped by $172.

Democratic Rep. Sondy Pope of Mt. Horeb pounced.

“The fact that Sen. Vukmir allowed this release out of her office, presumably without looking at her own memo, must be embarrassing,” Pope said. “What she should be even more embarrassed about is that she’s forced local property taxpayers to pick up the bill after she and her Republican colleagues gutted K-12 funding. Incrementally restoring a cut is not an increase, no matter how badly Republicans want it to be.”

Even so, Vukmir has a point in that neither set of figures told the whole story on education funding. 

For one thing, neither Vukmir’s or Bewley’s data included spending amounts by districts, an important consideration because, as Vukmir stated, Act 10 has enabled school districts to save money and spend less. Thus, fewer revenue dollars doesn’t necessary translate into lower classroom spending, which could be higher.


Then, too, as Vukmir observed, state aid has bounced back since 2011-12. In that year, state aid totaled only $4.75 billion, compared to $5.1 billion in 2014-15. In 2011-12, total per pupil aid was $12,604 compared to $13,039 in 2014-15, an increase of $435 over that spent in 2011-12.


Thus it matters whether spending comparisons are included and it matters what the benchmark year is. It matters how the equation is structured.
It’s all in the math, more or less.

It’s back: Suit filed against minimum mark-up in Vilas County

WILL, Krist Oil challenge constitutionality of law

Posted by Richard Moore on August 23


A website exclusive


The Wisconsin Institute for Law & Liberty has filed a lawsuit in Vilas County challenging the constitutionality and legality of Wisconsin’s minimum markup law, WILL announced this week.


The group filed the lawsuit Aug. 22 on behalf of plaintiffs Krist Oil and Robert Lotto.


According to the complaint, the civil-rights lawsuit challenges the constitutionality of Wisconsin’s Unfair Sales Act, also known as the minimum markup law, which requires retailers and wholesalers to charge more than the competitive price for the products they sell. 


“As a direct and necessary result, the Minimum Markup Law also requires Wisconsin consumers to pay more than the competitive price for the products they buy,” the complaint states. “This lawsuit seeks to vindicate the right of Wisconsin businesses to serve their customers free of anticompetitive, arbitrary, and irrational government regulation.”


WILL says the suit is also seeking to vindicate the right of consumers to purchase products at the most competitive price, free from arbitrary and irrational government regulations that drive up prices.


As the court documents show, Krist Oil Company owns and operates convenience stores and gasoline stations throughout northern Wisconsin and the Upper Peninsula of Michigan, and the lawsuit says the two states provide a comparative landscape by which to judge the minimum mark-up law. 


“Krist Oil believes that its business objectives are best served by providing consumers of gasoline with the best product at the lowest possible prices,” the complaint states. “The same is true with respect to other products Krist Oil sells in connection with its convenience store operations.”


But, while the company is able to freely pursue its business strategy in Michigan, which does not control the prices it can charge, it is not able to do so in Wisconsin, the complaint asserts. 


“The minimum markup law imposes entirely arbitrary and unreasonable restrictions on retail prices, making it impossible for Krist Oil to offer its Wisconsin customers the best products at the lowest possible prices,” the complaint states.


What’s more, the lawsuit maintains, the company’s right to serve its customers by engaging in a lawful business in the manner of its choosing is protected by the Wisconsin constitution, and in particular by its guarantees of equal protection and due process of law. 


“The Minimum Markup Law arbitrarily, irrationally, and unduly restricts the economic liberty guaranteed by the Wisconsin Constitution and thereby harms both Wisconsin businesses and Wisconsin consumers,” the complaint states. “It is therefore invalid and unenforceable.”


WILL identified Robert Lotto as a resident of Green Bay. 


“Mr. Lotto regularly purchases gasoline in the Green Bay area,” the complaint states. “Mr. Lotto desires to purchase gasoline at the lowest possible price and searches for the lowest priced gasoline he can purchase. Mr. Lotto is harmed by the Wisconsin law since it requires him to pay a price for gasoline that is higher than what the competitive price would be if Wisconsin’s minimum markup law were not in place.”


And, just to be clear, the lawsuit underscores, the minimum markup is not merely an issue related to fuel sales.


“Mr. Lotto is a consumer of other products subject to the minimum markup law as well,” the lawsuit states. “Just as in the case of gasoline, the Wisconsin Minimum Markup Law has the effect of forcing him to pay higher prices for such products than the prices that would prevail in a truly competitive market.”


Markup is a gift

Later in the day Tuesday, the Wisconsin Petroleum Marketers and Convenience Store Association said the lawsuit was the latest in a string of constitutional challenges to the law that was bound to fail. 


After 11 previous challenges, the association said, it’s time to let the law continue to keep prices competitive for Wisconsin consumers.


“We are obviously disappointed that there is yet another challenge to the law that has been working well for Wisconsin consumers for many years,” Matt Hauser, president and CEO of the WPMCSA, said. “This is the 12th constitutional challenge to the Unfair Sales Act and we are confident that the law will be upheld once again.”


Hauser said the Unfair Sales Act ensures that Wisconsin’s independent petroleum retailers can continue to provide their customers with a competitively priced product, and the law has survived because it works well for Wisconsin businesses and consumers. He also said it's not true that consumers are crossing the border for cheaper gas prices.


"Currently Wisconsin gas prices are lower than our neighbor states of Iowa, Illinois and Michigan," Hauser said. “The only neighboring state that’s a bit lower is Minnesota, which also has a fair marketing law. This is just another attempt to create a solution for something that’s not a problem in Wisconsin. It’s more than time to let the Unfair Sales Act do its job – and focus on real problems.”


The complaint

In its argument, WILL observes that Krist Oil is not affiliated with any of the major gasoline companies. 


“Its business plan is to operate independently, and it purchases its supplies of gasoline on the open market instead of being locked in to buying a single brand,” the complaint states. “This allows Krist Oil to buy gasoline at the cheapest price possible on a daily basis, giving it a competitive advantage over many of its competitors who lack that flexibility.”


In fact, WILL asserts, Krist Oil’s business model results in a lower overhead than many if not all of its competitors. 


“It does not pay franchise or any similar fees to major oil companies,” the complaint states. “In contrast to many of its competitors, it operates its own fleet for the transportation of products from refineries or other sources to its retail outlets across its market area.”


With those advantages, WILL argues, Krist Oil could and would profitably sell gasoline and other products in Wisconsin at prices lower than the prices required by the minimum markup law. 


“Both Krist Oil and its customers would benefit if it were free to do so,” the complaint states. “Customers benefit from the lowest possible prices, and Krist Oil benefits if it can attract new customers and increase its market share. Both Krist Oil and its customers have enjoyed the benefits of aggressive competition in Michigan, where the company is free to charge the lowest prices for its products that it chooses to charge.”


In addition to preventing Krist Oil from charging truly competitive prices in Wisconsin, WILL contends, the minimum markup law imposes undue and unnecessary compliance costs on the company’s Wisconsin operations. 


“Krist Oil must devote considerable employee time to surveying posted regional prices to determine whether the prices it charges comply with the Minimum Markup Law,” the complaint states. “It must also prepare and file numerous documents with DATCP such as notices that it is meeting competitors’ prices.”


Meanwhile, WILL continues, the law permits Krist’s rivals to submit baseless complaints about Krist’s legitimate low prices to state enforcement authorities whenever they believe it is in their interest to discourage vigorous price competition. 


“Thus, the company is forced to spend time and money to justify the lawful but low prices it charges,” the complaint states. “In order to protect itself from such complaints, it is forced to monitor the prices charged by its rivals and in many cases to file forms with the state that justify its pricing decisions and document its costs. This is a waste of resources that would otherwise be devoted to the business. The Minimum Markup Law thus increases the cost of doing business in Wisconsin and harms both retailers and Wisconsin consumers like Robert Lotto.”


A lawsuit of a different color

WILL has asked for a trial to force the state to prove that it has a reasonable and compelling interest in impeding commerce and protecting Wisconsin’s consumers from low prices.


Unlike previous legal challenges, WILL and the plaintiffs say they are asking the court to resolve the law’s contravention of Wisconsin’s constitutional guarantee to earn a living and to benefit from free markets.


“It’s important that the state of Wisconsin publicly stand up and argue how Wisconsin’s constitutional guarantee to earn a living is secondary to ensuring that protected special interests shouldn’t have to be subject to competition and that consumers should pay higher prices than market forces would call for,” WILL president and general counsel Rick Esenberg said. “We certainly understand that the Legislature has great discretion when it comes to making policy, but the courts should also make clear that politicians cannot play favorites based on some fanciful and implausible notion of public benefit.”


Though the Legislature is capable of repealing the law, and should do so, Esenberg said, that doesn’t change the fact that, until it does, the law continues to violate the fundamental rights of Wisconsin businesses and consumers and should be declared unconstitutional by the courts.


As WILL points out, there have been several unsuccessful challenges to the state’s Unfair Sales Act, but the group says none of them have resolved the constitutional issue presented in the case filed this week.


In 2009, for example, a federal district judge found Wisconsin’s minimum markup law for gasoline to be unconstitutional, saying it violated federal anti-trust prohibitions on the restraint of trade between states.


In the final analysis, the judge concluded, the Unfair Sales Act violated the federal antitrust statute called the Sherman Act, which provides that “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.” 


And that’s exactly what the Unfair Sales Act was doing, the judge stated.


“To illustrate, the act allows motor fuel retailers to match (but not undercut) their competitors’ prices,” the judge wrote in Flying J v. Van Hollen. “It forbids retailers from selling motor vehicle fuel below cost, which is based on the average posted terminal price plus a minimum markup of 9.18 percent. In addition, the state’s evidence confirms that retailers must hold their posted prices for at least 24 hours. The minimum markup percentage creates a range in which competitors may engage in collusive parallel pricing, which is exacerbated as the wholesale price of gasoline fluctuates. Therefore, the act is a per se restraint of trade because it authorizes and enforces a parallel (or horizontal) pricing policy.”


However, the state countered, the law did not violate the Sherman Act because there was no “concerted action” among retailers to fix prices. In effect, the state argued, the Legislature fixed prices for them.


A year later, in 2010, an appeals court overturned the decision and reinstated the minimum markup.


WILL also points to the 2012 Bhandari v. Nilsestuen decision.


“The only issue considered and decided by the Court of Appeals in the recent case of Bhandari v. Nilsestuen was whether the Unfair Sales Act violates the equal protection provisions of the Wisconsin Constitution,” WILL states. “The Court of Appeals concluded, wrongly we believe, that it did not.”


More important, though, the group states, the Krist Oil case raises robust substantial due process claims that were not considered or decided by the Bhandari court.  


“The focus of our complaint is that the Unfair Sales Act unlawfully restricts the economic liberty and right to earn a living guaranteed by the Wisconsin Constitution without furthering any legitimate, substantial, or compelling governmental interest,” WILL states. “And, in contrast to Bhandari, Krist Oil is joined in this case by a consumer, Robert Lotto. Lotto alleges that the Unfair Sales Act denies him and all Wisconsin citizens the benefits of free and open competition without furthering any legitimate, substantial, or compelling governmental interest.”

Wisconsin joins federal lawsuit against Obama’s transgender policies

Posted by Richard Moore May 27, 2016

States: Obama trying to rewrite Title IX by executive fiat

The state of Wisconsin has joined 10 other states in a federal lawsuit challenging the Obama administration’s new Title IX policy, in which the government seeks to redefine the word “sex” to mean self-identified gender identity.

The lawsuit stems from a joint guidance letter sent earlier this month by the U.S. Department of Justice and the U.S. Department of Education compelling all recipients of federal Title IX funding to treat individuals according to their “internal sense of gender.” According to the government, for purposes of federal law and with only an exception for athletics, a person’s sex is no longer determined biologically but by that person’s “gender identity,” and Title IX requires government agencies receiving federal funds to treat people accordingly. 

As the Wisconsin Department of Justice observes, the policy applies not only to bathrooms and locker rooms at public schools but to athletics, single-sex classes, and single-sex housing, such as dormitories.

Wisconsin attorney general Brad Schimel, who filed the lawsuit on the state’s behalf, called the new policy the latest example of the Obama administration’s unlawful executive overreach. He said Wisconsin’s sovereignty and independence have again been undermined by the federal government.

“President Obama’s attempts to re-write the laws of our country without congressional consent and approval are not going to be tolerated by the state of Wisconsin,” Schimel said. “After discussing with Gov. (Scott) Walker, I have decided to join my colleagues from across the country in challenging the Obama administration’s latest power grab, which will have a significant impact on Wisconsin, particularly at the University of Wisconsin and Department of Public Instruction.”

 

The lawsuit 
Schimel said the new policy conflicts with the plain language of Title IX, and is therefore an unlawful interpretation because Title IX does not prohibit “gender identity” discrimination but sex discrimination. 

The new guidance also conflicts with Wisconsin state law, Schimel said, which prohibits discrimination based on “sex” in the educational setting. While Wisconsin’s administrative code prohibits discrimination based on “sex, race, national origin, ancestry, creed, pregnancy, marital or parental status, sexual orientation, or [disability],” the state has not chosen to prohibit discrimination based on gender identity in schools, the attorney general said.

Underlying the lawsuit’s legal foundation is what the states say is “the singular principle that the solemn duty of the federal executive is to enforce the law of the land, and not rewrite it by administrative fiat.”

“Defendants have conspired to turn workplaces and educational settings across the country into laboratories for a massive social experiment, flouting the democratic process, and running roughshod over common-sense policies protecting children and basic privacy rights,” the complaint states. “Defendants’ rewriting of Title VII and Title IX is wholly incompatible with Congressional text. Absent action in Congress, the states, or local communities, defendants cannot foist these radical changes on the nation.”

As the lawsuit contends, Congress passed Title IX in 1972, which prohibited invidious discrimination on the basis of “sex” in federally funded education programs and activities. However, the complaint points out, Title IX permits institutions to differentiate intimate facilities by sex, in particular emphasizing that “nothing contained herein shall be construed to prohibit any educational institution receiving funds under this Act from maintaining separate living facilities for the different sexes.”

The concern then was that Title IX would force schools to sexually integrate dormitories. At the time, expressing congressional intent, the bill’s author, Democratic Sen. Birch Bayh of Indiana, dismissed that idea, as well as other possible outcomes, such as the forced integration of locker rooms.

“I do not read this as requiring integration of dormitories between the sexes, nor do I feel it mandates the [sexual] desegregation of football fields,” Bayh said. “What we are trying to do is provide equal access for women and men students to the educational process and the extracurricular activities in a school, where there is not a unique facet such as football involved. We are not requiring that intercollegiate football be desegregated, nor that the men’s locker room be [sexually] desegregated.”

And that was true in a wide range of situations in which personal privacy issues were at stake, Bayh told Congress the next year.

“These regulations would allow enforcing agencies to permit differential treatment by sex only — very unusual cases where such treatment is absolutely necessary to the success of the program — such as in classes for pregnant girls or emotionally disturbed students, in sports facilities or other instances where personal privacy must be preserved,” the senator said.

After Title IX was passed, the complaint asserts, the promulgated rules permitted schools to separate restrooms, locker rooms, and shower facilities on the basis of sex, and legal scholars defended separate sex intimate facilities as necessary to preserve individual privacy rights.

“In a 1975 Washington Post editorial, then Columbia Law School professor Ruth Bader Ginsburg wrote that ‘[s]eparate places to disrobe, sleep, perform personal bodily functions are permitted, in some situations required, by regard for individual privacy,’” the complaint states. “And in a 1977 report, the United States Commission on Civil Rights concluded ‘the personal privacy principle permits maintenance of separate sleeping and bathroom facilities’ for women and men.”

What’s more, if that wasn’t enough to establish congressional intent, Congress has explicitly and repeatedly rejected various attempts to insert gender identity into federal employment law and specifically into Title IX, the complaint contends.

In 2007, 2009, and in 2011, lawmakers proposed a broader version of the Employment Non-Discrimination Act to embrace gender identity, and similar efforts were made to add gender identity to Title IX in 2013 and 2015. All those efforts failed.

“Notwithstanding the success or failure of the aforementioned Congressional proposals, they all affirmed Congress’s enduring understanding that ‘sex,’ as a protected class, refers only to one’s biological sex, as male or female, and not the radical re-authoring of the term now being foisted upon Americans by the collective efforts of defendants,” the complaint states.

However, the complaint continued, when it chose to, Congress did overtly extend protections for “gender identity” in other areas of federal law, such as in hate crimes legislation.

Despite the plain language of the law, the complaint contends, the Obama administration has repeatedly rewritten federal statutes to cover “gender identity” as though they had actually been amended, culminating in this year’s guidance letter to public schools.

School not complying with the bathroom policy face the loss of federal funds, and the lawsuit says that would have a catastrophic impact on elementary and secondary education.

“Not counting funds paid directly to state education agencies, or funds paid for non-elementary and secondary programs, the national amount of direct federal funding to public elementary and secondary schools alone exceeds $55,862,552,000 on average annually — which amounts to 9.3 percent of the average state’s total revenue for public elementary and secondary schools, or $1,128 per pupil,” the lawsuit states.

Not only do the new rules exceed congressional authorization and take executive overreach to new heights, the lawsuit contends, but they violate the Tenth Amendment guarantee of states’ rights.

“The new rules, regulations, guidance and interpretations described herein violate the Tenth Amendment because they effectively commandeer the states’ historic and well-established regulation of civil privacy law,” the complaint states. “The new rules, regulations, guidance and interpretations described herein unlawfully attempt to preempt state law regarding rights of privacy because historic powers reserved to the States, such as civil privacy protections, cannot be superseded by federal act, ‘unless that was the clear and manifest purpose of Congress.’ As explained herein, not only is there no evidence that Congress intended to regulate civil privacy circumstances within the states, but legislative history demonstrates that Congress expressed its clear intent to not encroach upon the traditional state role in safeguarding privacy expectations in the workplace, public accommodations, and educational settings.”

A call to arms
Wisconsin’s decision to join the lawsuit sparked a fierce political battle, with Democrats denouncing the move.

U.S. Rep. Mark Pocan (D-Wisconsin) called the decision an attack on youth for the sake of ideology.

“Schimel’s decision should come as no surprise to those familiar with Scott Walker’s backwards approach to governing the state,” Pocan said. “While Gov. Walker and Schimel may couch this decision in protecting Wisconsin’s interests, nothing could be farther from the truth. It’s a poor and pitiful attempt to catch a dying wave of shameful political attacks on transgender youth, in an effort to advance an antiquated ideology.”
Pocan said the state should support policies in schools that make students safer, not eliminate protections for the most vulnerable students. 

“Many of our country’s leading education groups, including the National PTA and the National Education Association, have embraced these federal guidelines, signaling they would provide students with safe and welcoming schools,” he said.

Likewise, state Rep. JoCasta Zamarripa (D-Milwaukee) said she was disappointed in the decision.

“It seems like every week I talk about how the Republicans have sunk to a new low in their attacks on LGBT people,” Zamarripa said. “Then I find myself saying it again the next week. Generally, when schools in Wisconsin accept federal money, they agree to abide by federal law, and federal law prohibits discriminating against transgender students by forcing them into separate but equal public facilities.”

Luckily, she said, constitutional rights are not subject to a majority vote, and don’t depend for their existence on whether it makes fellow citizens uncomfortable.

“I’m more than disappointed that attorney general Schimel, the top law enforcement official in the state, who we’re supposed to be able to look to for protection, instead chose to use his power to protect bigotry,” Zamarripa said.

Positive reaction
The decision to join the lawsuit garnered a lot of positive reaction, too.

Wisconsin Family Action’s president, Julaine Appling, commended Schimel for taking leadership and for repeatedly pushing back against the unconstitutional overreach of the federal government. This time, she said, the overreach threatens the well-being of children.

“There’s much more at stake in this than the blatant federal government power grab,” Appling said. “Real students at every grade level will be affected by the policies this mandate forces on our schools. I am sure our state leaders are as concerned as I am for the well-being, privacy rights, and safety of our students.”

While some try to make the change appear completely innocuous, Appling said, more and more women who have been victims of transgender policies in restrooms, locker rooms, and showers are speaking up. These women, she said, feel completely violated and unsafe, with no assurances that somebody can’t come in with harmful intentions.

Meanwhile, state Sen. Stephen Nass (R-Whitewater) and Rep. Jesse Kremer (R-Kewaskum), the authors of last year’s unsuccessful “Student Privacy Protection Act,” released an open letter to Wisconsin’s parents and children following release of the joint guidance letter.

“This guidance is another blatant attempt to wrest power from states and local school boards, ignoring the clear separation of powers enumerated in the Tenth Amendment to the U.S. Constitution,” they wrote. 

Not only that, they continued, the new federal policies contradict state statutes, and that calls for clarity. The directives are not only a clear violation of the 10th Amendment, they wrote, but a violation of current state law that requires school boards to provide and maintain suitable and separate toilets and other sanitary facilities for both sexes.

“The power to make these policies must remain at the local level, with guidance from the state,” Nass and Kremer wrote. “As a state, we will continue to push for minimal guidance for our schools, allowing locally elected school boards — entities created by the state — to do their job promoting safe, harassment-free learning environments for our children.”

That said, they wrote, there must be some uniformity and guidance for schools. 

“For example, if a multi-stall, unisex facility is utilized, the units must be completely private and any ‘open bay’ facility will be authorized for use by only students with the same anatomical body parts,” the lawmakers wrote. “Also, any student uncomfortable with the school’s arrangement can discuss the matter with school officials and be provided an alternative accommodation.”

Nass and Kremer said they would reintroduce their legislation, which they say addresses the federal government’s abusive overreach and heavy-handed approach to school districts.

“The Wisconsin Legislature will take a stand against the bullying and intimidation tactics of the federal government, ensuring that state and local rights are maintained by making the privacy and safety of Wisconsin students of utmost importance,” they wrote.

Living on the Funny Cide of Life

Posted May 19, 2016

by Richard Moore


Advice to this year’s graduates 

Some years ago, I wrote about the great Secretariat, the 1973 Triple Crown winner who still holds the records for the fastest times in all three Triple Crown races, the Kentucky Derby, the Preakness Stakes, and the Belmont Stakes.

Back then, Secretariat was a superhero in a war-weary nation — Time Magazine featured him on its cover, calling him SuperHorse — and when I wrote about him I urged young graduates seeking role models to look no further than, yes, a horse: Secretariat.

In those races, and especially in the Belmont Stakes where he achieved immortality, Secretariat seemed to soar with Heaven-sent energy. 
He appeared to be running not against the long-faded field but against himself. He ran himself right into history, in fact, and I advised young graduates that, yes, they should follow Secretariat’s example: Just set your goals and run toward them. Pass everybody by. Don’t let them catch you. Don’t let the crowd of onlookers distract you or intimidate you. 

Just run and never stop running, and you just might find there’s still a place for heroes in the hearts of a nation. You just might run yourself into history.

That’s still good advice, but, of course, most of us are not a Secretariat. A superhero comes along only once in a great while. So what about the rest of us?

Well, that brings me to a horse I know named Funny Cide and to some more horse-sense advice for this year’s graduates.

Funny Cide wasn’t a nationally adored glamour horse like Secretariat. He was never featured on the cover of Time. Nobody called him SuperHorse. No Funny Cide toy lines appeared in stores for the kids.

It’s even an overstatement to say his beginnings were modest.

He didn’t have an impressive pedigree, and he was born and raised in New York, at the time hardly the home of horse-racing champions, almost the antithesis, in fact.

His owners? A group of fans who had liked to pal around at the race track since their school days, who didn’t have much money, and who were hardly horse savvy. They each plunked down a little for a horse they could afford as a way to keep the crowd together. It is said they arrived at the Kentucky Derby in a school bus.

His jockey? A hard-scrabble has been. His trainer? A 30-year knock-around.

It didn’t seem too promising. And yet, Funny Cide, with courage and spunk and just a somewhat precocious personality — a horse who liked to ham it up — had other ideas.

Funny Cide worked hard, very hard, and it began to pay off here and there as a two year old. He wasn’t grabbing the headlines like his rivals Empire Maker and Peace Rules, but he was beginning to place in a few races. 

And then he began winning races, here and there. 

And, seemingly overnight, he woke up to be a Kentucky Derby contender after finishing second to Empire Maker in a well-known Derby preamble race, the Grace Woods Memorial. 

Well, he wasn’t exactly a contender but a contender to be in the race, at least. After all, he was still finishing back in the pack in some contests.

People in his native Saratoga Springs, New York, though, began to take notice. Funny Cide suddenly had a fan club, and among them were throngs of school children excited about the success of their local horse. Now not just his owners but a coterie of horse-racing fans, not to mention an entire community, were rooting for this courageous underdog with the funny name.

Funny Cide, a ham as well as a horse, loved it all.

And then came Derby day, where the fairy tale was supposed to end. Funny Cide went off the post at only 12-1 odds, or, as The New York Times put it that morning, he was the “yeah, right” horse in the field.

Empire Maker and Peace Rules were the royalty, but Empire Maker came out of the gate slow, and somehow, someway, as they rounded the first turn, Funny Cide was right there, sailing alongside Peace Rules.

That day, peace would not rule. The courageous Funny Cide kept digging and digging, running and running, and, at the end, he ran away from the field for a two-length win and the tenth fastest Kentucky Derby in history. It still is.

For his rag-tag owners, it was a dream come true, and, to his new multitude of fans, so many young people among them, proof of what an underdog can do. Funny Cide was the first New York-bred horse ever to win a Derby, and the first gelding in 74 years to do so.

One of the owners, Jack Knowlton, put it this way to The New York Times: “We are the little guys in the game. Everyone who dreams in this game, … look at what you can accomplish. Little did we know.”

Funny Cide wasn’t through. The Preakness wasn’t even a contest as the gelding stormed to an almost nine-length victory, setting up his run for glory in the Belmont Stakes. The hype now was unbelievable. He was being called “the people’s horse,” and the crowds in the stands were chanting his name.

Alas, it wasn’t to be. It had rained all day the day before and the mud was thick at the Belmont.

Funny Cide got stuck in the deepest mud along the rail. He galloped gallantly but on that day he did not win. Maybe it was the mud, or maybe he was exhausted from the Preakness, or maybe he just wasn’t the best horse, but Funny Cide finished third.

There was no more national hype. The lights dimmed. The national audience turned away. For the media, Funny Cide was so yesterday, despite being one of only 23 horses to win both the Derby and the Preakness, out of almost 5,000 who had ever competed.

Funny Cide would race for four more years, with modest success, before retiring. But the story really doesn’t end there. Instead, his retirement was just another beginning.

As it turned out, a nation hungering for a Triple Crown winner might have moved on, but, in upstate New York, in Kentucky, and across the land in fan clubs, Funny Cide’s admirers stayed put.

On his last day of competition, an overflow crowd of 11,000 turned out to see him, and Funny Cide responded by winning his last race ever. The crowd returned the favor, giving the gelding a long standing ovation.

A month later, at Saratoga Springs, at the track where he came of age, the New York Thoroughbred Breeders Association feted Funny Cide with a retirement party. Among an adoring flock, he received a cake in the winner’s circle, and a local shop named an ice-cream treat for him whose name maybe said it all, Funny Cide Pride.

These days, some 13 years after the glory, Funny Cide resides at the Kentucky Horse Park in Lexington, Kentucky, but he is anything but forgotten.

His fans are still there. In 2010, the New York Thoroughbred Breeders Association voted him the New York-bred horse of the decade, and, two years later, a statue of Funny Cide was unveiled in Saratoga Springs. Also that year, he participated in a seminar (I’m not kidding) for prospective racehorse owners. 

The appreciation runs nationally, as children of all ages come to see Funny Cide in retirement, and many make special efforts to do so. It is said a certain fan makes it a habit to visit on Thanksgivings. She comes because she knows not many will be around, and she gets to spend all day with him.

The short story is, Funny Cide was not a Triple Crown winner, he was no Sea Biscuit or Secretariat, but he is still one of the most popular and admired horses of the ages.

The question is, why? Most say it’s because he was the people’s horse who rose up to defeat thoroughbred royalty. 


Maybe, but I think Funny Cide offers a greater lesson still. Funny Cide didn’t win the Triple Crown and never earned the star power of Secretariat, b ut that’s OK because of the impact he had on thousands and thousands of lives, so many of them young people, on the communities of upstate New York, and in fan clubs across the country.

He was a gritty underdog who ran with courage and pride, and he taught all his adoring fans they they, too, can achieve great success if they just ran, and worked hard, and kept at it. Just dream, Funny Cide’s story screams, and look at what you can accomplish.


The lesson he taught his fans was simply this: You don’t have to a national superhero to make a difference in the lives of the people around you. Just work hard and with passion and determination, like Funny Cide, and, even if you fall a little short, your achievements will ripple ever outward, touching the lives of those around you in ways you will never even imagine. 


And the inspiration that that instills in those people will ripple ever outward from them, inspiring legions more.

Maybe that’s the real essence of a true superhero: the quiet but powerful inspiration of a career well done and a life well lived. There can be no better legacy, no more powerful role model.

It’s not so much what you accomplish, but the lessons those accomplishments leave behind. Funny Cide was a Derby winner and a Preakness winner, but his greatest feat was the inspiration and hope — the dare to dream — he gave to those who loved him. The underdogs, Funny Cide teaches us, are just as important in this world as the top dogs, maybe more so, even if they don’t get the headlines.

These days Funny Cide still inspires (he inspired me when I visited him last month), still leads parades, and, back at the park, he loves peppermint candies, pies, and brownies, not necessarily in that order.

It’s a good life, and we can live it, too. Just have pride and courage and keep working, and you can change the world. 

It might not be a tidal wave, but the little riffles you cause in the tides shape the shore just the same, when you live on the Funny Cide of life.